12058.
PUBLIC RECORD OFFICE
C.O. 885
Reference :-
10
ALLY WITHOUT PERMI BE REPRODUCED PHOTOGRAPHIC-
COPYRIGHT PHOTOGRAPH-NOT TO
PUBLIC RECORD OFF
OF THE
NDON
No. 150. (NEWFOUNDLAND.)
LAW OFFICERS to COLONIAL OFFICE.
Temple, December 13, 1862. MY LORD DUKE,
We are honoured with your Grace's commands, signified in Sir Frederic Rogers's letter of the 7th November, ultimo, stating that he was directed by your Grace to forward for our joint consideration the Petition of Right therein enclosed to the Queen from Mr. S. G. Archibald, applying for further remuneration on account of servicos rendered to the Government of Newfoundland, under the local Act, cap. iii. of the present year.
Sir Frederic Rogers was also pleased to state that your Grace desired to be informed of the proper course to be taken with respect to this petition.
In obedience to your Grace's commands we have taken these papers into our con- sideration, and have the honour to
Report
That it appears in this case, by Mr. Archibald's statements, that certain duties which he had undertaken to discharge for the Colonial Government of Newfoundland were afterwards extended to a district not included within the scope of his original commis- Bion; and that having declined, under the circumstances, to proceed in the execution of those duties without further remuneration beyond the 501. originally agreed upon (and which he had received), he was induced to continue his labours, upon the faith of a promise by the Colonial Government that he should receive a fair remuneration upon the principle of quantum meruit. Having received only 351. beyond the amount origi- nally stipulated, he has presented this Petition of Right, praying that Her Majesty will command right to be done in the matter" by the justices of the Supreme Court of Newfoundland.”
If a similar petition were presented in this country as to a claim against the British Government under like circumstances, we should not feel justified (although the amount in question is probably insignificant) in advising Her Majesty to refuse the prayer of the petition. But this case is clearly not within the recent statute, 23 & 24 Vict. c. 34., which applies only to cases which would have been cognizable in one of the superior courts of common law or equity in Westminster, if the dispute had been between subject and subject. The present claim being founded on a contract made in New- foundland, and to be performed there, between persons residing there, would be cogni- zable only by the courts of Newfoundland, and the public revenues of that Colony, and not those of Great Britain, would be liable to make it good, if it were established. The petitioner, therefore is right in assuming that his remedy, if he has one, must be prosecuted in the Supreme Court of that Colony.
On general principle we do not see any good reason why the remedy by Petition of Right should not be competent to the subject in any Colony in which the laws of England generally prevail, nor why such a petition might not receive a special endorse- ment directing that right be done in the Supreme Court of such a Colony. (See Re Pering, 2 Mees. & Welsby, 873.) But we are not at present aware of any precedent for such a course, and we should be glad to receive further information on that subject, if any such precedents exists or are referred to among the records of the Colonial Office. Failing such information, we would suggest that the papers in this case should be laid before the Attorney General of Newfoundland, and that he should be requested to report what has been the law or practice applicable to such a case which has been hitherto understood to prevail in the Colony, and what, in his opinion, ought to be done.
His Grace the Duke of Newcastle, K.G.,
&c.
&c.
&c.
We have. &c.
(Signed)
WM. ATHERTON. ROUNDELL PALMER.